Transcription

1 SMITHSONIAN DIRECTIVE 113, July 24, 2012 RESPONDING TO SUBPOENAS AND REQUESTS FOR EXPERT WITNESS SERVICES I. Purpose 1 II. Scope 1 III. Roles and Responsibilities 3 IV. Policy 4 V. Definitions 5 5 I. Purpose This Smithsonian Directive (SD) provides a uniform administrative policy and procedures for handling Subpoenas issued to the Smithsonian Institution (Smithsonian) or its employees or other individuals as defined below (Covered Persons). Although the Smithsonian responds to written requests for Smithsonian information in a manner that is consistent with the principles of disclosure under the Freedom of Information Act as described more fully in SD 807, a request that is submitted in the form of a Subpoena or that seeks Expert Witness services involves a specific litigation process and imposes certain legal obligations and deadlines. Under this SD, the Smithsonian will respond to Subpoenas and requests for Expert Witness services in a uniform and impartial manner that is consistent with applicable laws, regulations, and rules of judicial and administrative entities. II. Scope This SD applies to Subpoenas issued to the Smithsonian or Covered Persons for information acquired by the Covered Person while performing official duties or because of the Covered Person s position or association with the Smithsonian. This SD applies to Subpoenas issued in connection with proceedings pending before federal or state courts and administrative bodies. It applies to Subpoenas for documents (subpoena duces tecum) or testimony

2 II. Scope (subpoena ad testificandum). This SD further applies to requests directed to a Covered Person for Expert Witness services. This SD does not apply to: Requests for testimony or documents from the United States Congress 1 or United States Government Accountability Office; Requests for Smithsonian records submitted by members of the public 2 ; Subpoenas served on Covered Persons in their private or non-smithsonian capacities. In particular, this SD does not apply to Covered Persons who voluntarily testify on their own time or on approved leave status as private citizens concerning facts or events that do not relate to their duties at the Smithsonian or to Smithsonian activities and functions. Such Covered Persons should state for the record that their testimony in such cases represents their own views and is not the official position of the Smithsonian; Claims against employee wages 3 ; or Demands issued by foreign courts. Nothing in this SD is intended to impede the appropriate disclosure of information to United States federal, state, local, and foreign law enforcement, prosecutive, or regulatory agencies. This SD is procedural in nature, not substantive; it does not create any benefit, privilege, or right, whether substantive or procedural, that a party may rely upon in any legal proceeding against the United States or the 1 Congressional correspondence should be shared with the Office of Government Relations and handled pursuant to SD 812, Government Relations. 2 Such requests should be submitted to the Office of General Counsel pursuant to SD 807, Requests for Smithsonian Institution Information. 3 Requests for claims against employee wages should be handled pursuant to SD 116, Claims Against Employee Wages, and its appendices. 2

3 II. Scope Smithsonian or its officers. In providing these procedures, the Smithsonian does not waive the sovereign immunity of the United States. If the party issuing a Subpoena fails to comply with applicable laws, regulations, policies, and procedures, however, that could be a basis for denial. III. Roles and Responsibilities Covered Persons are responsible for compliance with this SD, including by providing to the General Counsel immediate notification of any Subpoena or request for expert witness services received and for supplying truthful and accurate information to the best of their personal knowledge. The General Counsel represents the Smithsonian and shall advise Covered Persons regarding their responsibilities under this SD. The General Counsel is responsible for taking appropriate actions under this SD, and has the power to authorize or deny Covered Person testimony and production of documents. The General Counsel may negotiate with the party who issued the Subpoena in order to refine or limit the demands. The General Counsel shall coordinate with, and seek the assistance of, the United States Department of Justice, including United States Attorney s Offices, as appropriate, to address requests for Expert Witness services, to prepare objections, or to file motions, including but not limited to motions to remove a matter to federal court, quash a Subpoena, or obtain a protective order. The General Counsel may delegate his or her responsibilities as appropriate. The Inspector General is responsible for performing the functions assigned to the General Counsel under this SD with respect to Subpoenas or requests for Expert Witness services that are directed to the Smithsonian Office of the Inspector General or a Covered Person employed by the Smithsonian Office of the Inspector General. Employees with Authority to Award Contracts or Grants and Enter Other Agreements on Behalf of the Smithsonian Institution: Smithsonian employees who have this authority are responsible for notifying 3

4 III. Roles and Responsibilities contractors, grantors, and recipients of externally funded sub-grant and sub-contract awards of the applicable requirements in SD 113. Such notification may be accomplished by including a reference to this SD in agreements or awards, or by other means as determined appropriate and effective. IV. Policy No Covered Person may testify or produce Smithsonian records or information in response to a Subpoena without prior written approval from the General Counsel pursuant to this SD. No Covered Person may serve as an Expert Witness without written prior approval from the General Counsel unless such testimony would not violate any of the principles or standards set forth in SD 103, Smithsonian Institution Standards of Conduct, and either: (i) in consultation with the Department of Justice, the General Counsel as ethics officer determined that the Covered Person s service as an Expert Witness is in the interest of the United States; or (ii) the General Counsel as ethics officer determined that the requested testimony does not relate to the Covered Person s official duties. 5 Code of Federal Regulations (C.F.R.) ; 18 United States Code (U.S.C.) 207; SD 103 8(a). If a Covered Person receives a Subpoena or request for Expert Witness services that seeks documents or information created under a memorandum of understanding or similar written agreement between the Smithsonian and a U.S. federal agency, the Covered Person shall notify the Smithsonian and the agency by sending the Subpoena or request to the contact persons or representatives designated in the agreement; such designated persons shall notify their respective Office of General Counsel and those offices shall confer regarding the appropriate response to the Subpoena or request. 4

5 IV. Policy Covered Persons who testify or provide Smithsonian records or information in violation of this SD may be subject to disciplinary action or other appropriate action(s). V. Definitions Covered Persons: All employees, regents, officers, members of advisory boards, Fellows, interns, research associates, adjunct scientists or researchers, volunteers, and contractors of the Smithsonian, whether current or former. Expert Witness: An Expert Witness provides testimony and/or reports based on his or her scientific, technical, or other specialized knowledge in order to assist the trier of fact in understanding the evidence or determining a fact in issue; such witness must be qualified by the court. Fed. R. Evid Ordinarily, an Expert Witness is not subpoenaed; instead, the Expert Witness is retained under a contract and paid a fee for his or her services. General Counsel: The General Counsel of the Smithsonian or a person to whom the General Counsel has delegated authority under this SD. Subpoena: An order commanding the recipient to appear at a particular time and place, and to provide documents or testimony, often under penalty for noncompliance. Instructions for Submission of Subpoenas and Requests for Expert Witness Services on the Smithsonian Subpoenas must be served directly on the General Counsel, whose contact information is available at As a trust instrumentality of the United States, the Smithsonian is not subject to state court process, and may not be subject to Subpoena by federal or state 5

6 administrative bodies; if the proceeding is pending in a state court or administrative body, the requestor must make a request for Smithsonian records under SD 807. In addition to complying with applicable procedural and substantive laws, regulations, and rules, all Subpoenas and requests for Expert Witness services must be accompanied by a declaration or other sworn statement containing a: Complete list of parties to the proceeding and identification of any known relationship the listed parties have with the Smithsonian, or to the Smithsonian s mission or programs, or to the United States; Showing that the desired documents or testimony cannot reasonably be obtained from a more convenient, less burdensome, or less expensive source and are not cumulative or duplicative; and Showing of appropriateness, including that providing the testimony would not cause the Smithsonian any undue burden or expense, require disclosure of privileged information, trade secrets, or confidential, sensitive, or private information, impede the Smithsonian s ability to conduct official business, reduce the Smithsonian s impartiality, involve the Smithsonian in issues unrelated to its mission or programs, expend public resources for private purposes, or have a negative cumulative effect on Smithsonian resources. If the Subpoena or request for Expert Witness services seeks testimony, the declaration or other sworn statement must also contain a: Summary of the testimony sought and its relevance to the pending proceeding. If the Smithsonian grants authorization for testimony, unless otherwise agreed in writing, the authorization will be limited to the scope of the demand as summarized in the declaration or other sworn statement; and 6

7 Showing that no record could be provided and used in lieu of Covered Person testimony. Failure to comply with these instructions may result in delay and/or a determination not to authorize testimony or production of documents. Smithsonian Procedures upon Receipt of Request for Expert Witness Services A Covered Person receiving a request for Expert Witness services must notify the General Counsel immediately. The General Counsel is responsible for taking appropriate actions under this SD and has the power to authorize or deny requests where appropriate. The General Counsel may delegate his or her responsibilities as appropriate. The General Counsel may coordinate with, and seek the assistance of, the United States Department of Justice, including the United States Attorney s Offices, as needed regarding the authorization or denial of requests, preparing objections, and/or filing appropriate motions. The General Counsel and/or the United States Department of Justice will communicate decisions authorizing or denying the request in writing to the party making the request. Smithsonian Procedures upon Receipt of Subpoena A Covered Person receiving a Subpoena must notify the General Counsel immediately. The General Counsel is responsible for taking appropriate actions under this SD and has the power to authorize or deny production or testimony where appropriate. The General Counsel may delegate his or her responsibilities as appropriate. The General Counsel may negotiate with the demander to refine or limit the Subpoena as appropriate. 7

8 The General Counsel shall coordinate with, and seek the assistance of, the United States Department of Justice, including the United States Attorney s Offices, to prepare objections and file appropriate motions, including motions to remove the matter to federal court, quash the Subpoena, or obtain a protective order. In evaluating a Subpoena, the Smithsonian may consider whether the Subpoena would: Cause the Smithsonian undue burden; Seek unreasonably cumulative or duplicative information; Seek information obtainable from a more convenient, less burdensome, or less expensive source; Require the disclosure of privileged information, trade secrets, or confidential, sensitive, or private information; Impose a burden or expense on the Smithsonian not outweighed by the likely benefit of compliance; Be necessary to prevent a miscarriage of justice; Further a Smithsonian interest in the decision that may be rendered in the proceeding; Be in the best interest of the Smithsonian or the United States; Be appropriate under Rule 45 of the Federal Rules of Civil Procedure and/or rules of procedure governing the proceeding in which the Subpoena arose; Be appropriate under relevant substantive law concerning privileges, immunity, and privacy; Violate a statute, regulation, rule of procedure, or the rights of a third party; 8

9 Reveal investigatory records compiled for lawenforcement purposes, and interfere with enforcement proceedings or disclose investigative techniques and procedures the effectiveness of which would thereby be impaired; Impede the Smithsonian s ability to conduct official business; Reduce the Smithsonian s impartiality; Involve the Smithsonian in issues that are unrelated to its mission and programs; Expend public resources for private purposes; Have a negative cumulative effect on Smithsonian resources; and Fulfill the purposes of this SD. The General Counsel or the Assistant United States Attorney or other Department of Justice attorney responsible for defending the Subpoena matter will communicate decisions authorizing or denying a Subpoena in writing to the party who caused the Subpoena to be issued. Procedure in the Event the Smithsonian Has Not Made a Decision at the Time a Response Is Required If authorization has not been granted or denied by the time a response is required, either the General Counsel or the Assistant United States Attorney or other Department of Justice attorney responsible for defending the Subpoena matter will provide the competent authority in the proceeding from which the Subpoena arose with a copy of this SD, inform the authority that the Subpoena is under review, and seek a stay of the Subpoena pending final determination. 9

10 Procedure in Case of Denial In those cases in which the Smithsonian has issued a denial of a Subpoena, either the General Counsel or the Assistant United States Attorney or other Department of Justice attorney responsible for defending the Subpoena matter will provide the competent authority in the proceeding in which the Subpoena arose with the applicable reasons therefore, including as appropriate a copy of this SD, and on behalf of the Smithsonian (i) respectfully decline to comply with the Subpoena, (ii) affirmatively take all necessary or appropriate actions, including without limitation motions practice, to have the Subpoena quashed or withdrawn, and (iii) oppose any action to enforce the Subpoena or to find the Smithsonian or any Covered Person in contempt for failure to comply with the Subpoena. United States ex rel. Touhy v. Ragen, 340 U.S. 462 (1951). Fees The Smithsonian will charge costs, including travel expenses, for employees to testify or produce documents under the relevant substantive and procedural laws and regulations. Estimated costs must be paid in advance by check or money order payable to the Smithsonian Institution. Upon determination of the precise costs, the Smithsonian either (i) will reimburse the party that caused the Subpoena to be issued for any overpayment or (ii) will charge the party that caused the Subpoena to be issued for any underpayment, which charges must be paid within 10 business days by check payable to the Smithsonian Institution at the address specified in writing. CANCELLATION: INQUIRIES: RETENTION: Not Applicable Office of General Counsel (OGC) Indefinite. Subject to review for currency 24 months from date of issue 10

Rule 45. Subpoena. (a) Form; Issuance. (1) Every subpoena shall state all of the following: a. The title of the action, the name of the court in which the action is pending, the number of the civil action,

Friday 31st October, 2008. It is ordered that the Rules heretofore adopted and promulgated by this Court and now in effect be and they hereby are amended to become effective January 1, 2009. Amend Rules

AN ACT IN THE COUNCIL OF THE DISTRICT OF COLUMBIA To amend the District of Columbia Procurement Practices Act of 1985 to make the District s false claims act consistent with federal law and thereby qualify

Stricken language would be deleted from and underlined language would be added to present law. State of Arkansas 90th General Assembly A Bill Regular Session, 2015 SENATE BILL 830 By: Senator D. Sanders

ANSWERING THE CALL: RESPONDING TO A TEXAS CIVIL SUBPOENA I. Introduction Your client has just received a subpoena from a Texas civil court in a case in which she is not a party. She calls you and inquires

PLEASE NOTE: Legislative Information cannot perform research, provide legal advice, or interpret Maine law. For legal assistance, please contact a qualified attorney. Be it enacted by the People of the

NEW YORK CITY FALSE CLAIMS ACT Administrative Code 7-801 through 7-810 * 7-801. Short title. This chapter shall be known as the "New York city false claims act." 7-802. Definitions. For purposes of this

Public Information Program Public Records Policy Purpose This policy is adopted pursuant to the Government Records Access and Management Act Utah Code Ann. 63G-2-701 ( GRAMA ) and applies to District records

What is ediscovery? Electronic discovery ( ediscovery ) is discovery of electronic information in litigation. ediscovery in California is governed generally by the Civil Discovery Act. In 2009, the California

Supreme Court Rule 201. General Discovery Provisions (a) Discovery Methods. Information is obtainable as provided in these rules through any of the following discovery methods: depositions upon oral examination

MEMORANDUM OF UNDERSTANDING BETWEEN THE U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION AND THE U.S. DEPARTMENT OF JUSTICE - CIVIL RIGHTS DIVISION REGARDING TITLE VII EMPLOYMENT DISCRIMINATION CHARGES AGAINST

IN THE SUPREME COURT OF THE STATE OF ALASKA ORDER NO. 1682 Amending Civil Rules 16, 26, 33, 34, 37, and 45 concerning Discovery of Electronic Information IT IS ORDERED: 1. Civil Rule 16 is amended to read

HIPAA Business Associate Agreement Sample Notice Disclaimer: Template Business Associate Agreement (45 C.F.R. 164.308) The information provided in this document does not constitute, and is no substitute

STATE OF OKLAHOMA nd Session of the rd Legislature () SENATE BILL AS INTRODUCED By: Crain An Act relating to Medicaid fraud; amending O.S., Sections 0 and 0, which relate to the Oklahoma Medicaid Program

. ILLINOIS WHISTLEBLOWER REWARD AND PROTECTION ACT 175/1. Short title 1. This Act may be cited as the Whistleblower Reward and Protection Act. 175/2. Definitions 2. Definitions. As used in this Act: (a)

As amended by Chapter 16 of the 2013 Minnesota Session Laws. 15C.01 DEFINITIONS MINNESOTA FALSE CLAIMS ACT Subdivision 1. Scope. --For purposes of this chapter, the terms in this section have the meanings

NEW YORK FALSE CLAIMS ACT STATE FINANCE LAW, ART. XIII (2013) 187. SHORT TITLE This article shall be known and may be cited as the "New York false claims act". 188. DEFINITIONS As used in this article,

The False Claims Act: A Primer The False Claims Act (FCA), 31 U.S.C. 3729-3733 was enacted in 1863 by a Congress concerned that suppliers of goods to the Union Army during the Civil War were defrauding

CHAPTER 20. FLORIDA REGISTERED PARALEGAL PROGRAM 20-1. PREAMBLE RULE 20-1.1 PURPOSE The purpose of this chapter is to set forth a definition that must be met in order to use the title paralegal, to establish

Privacy Impact Assessment Of the Office of Inspector General Information Technology Infrastructure Systems Program or application name: Office of Inspector General Information Technology Infrastructure

Electronic Discovery and the New Amendments to the Federal Rules of Civil Procedure: A Guide For In-House Counsel and Attorneys By Ronald S. Allen, Esq. As technology has evolved, the federal courts have

Georgia Taxpayer Protection False Claims Act (Ga. Code. Ann. 23-3-120 to 127) i 23-3-120. Definitions As used in this article, the term: (1) "Claim" means any request or demand, whether under a contract

Research Guide Last Updated: January 2013 Table of Contents How to Prepare and Serve Form Interrogatories on the Other Party (JC Form #FL-145)... 2 How to Respond to Family Law Form Interrogatories (not

GENERAL ASSEMBLY OF NORTH CAROLINA SESSION 2009 SESSION LAW 2009-554 HOUSE BILL 1135 AN ACT TO DETER AND PUNISH PERSONS WHO MAKE FALSE OR FRAUDULENT CLAIMS FOR PAYMENT BY THE STATE AND TO PROVIDE REMEDIES

House Bill 822 (AS PASSED HOUSE AND SENATE) By: Representatives Lindsey of the 54 th, Lane of the 167 th, Atwood of the 179 th, Oliver of the 83 rd, and Dollar of the 45 th A BILL TO BE ENTITLED AN ACT

Article 51. False Claims Act. 1-605. Short title; purpose. (a) This Article shall be known and may be cited as the False Claims Act. (b) The purpose of this Article is to deter persons from knowingly causing

SUBCHAPTER IX. PRETRIAL PROCEDURE. Article 48. Discovery in the Superior Court. 15A-901. Application of Article. This Article applies to cases within the original jurisdiction of the superior court. (1973,

SIXTH JUDICIAL DISTRICT ATTORNEY-CLIENT FEE DISPUTE RESOLUTION PROGRAM LOCAL PROGRAM RULES AND PROCEDURES SECTION 1 - POLICY It is the policy of the Sixth Judicial District ( district ) to encourage out-of-court

SAN FRANCISCO ADMINISTRATIVE CODE CHAPTER 96: COORDINATION BETWEEN THE POLICE DEPARTMENT AND THE OFFICE OF CITIZEN COMPLAINTS SEC. 96.1. DEFINITIONS. (a) "Chief of Police" shall mean the Chief of the Police

Illinois Freedom of Information Act Frequently Asked Questions By the Public The Illinois Freedom of Information Act (FOIA) is designed to ensure that Illinois residents can obtain information about their

Background The Right to Financial Privacy Act of 1978 was enacted to provide the financial records of financial institution customers a reasonable amount of privacy from federal government scrutiny. The

THE BBA TABLE OF CONTENTS CONTACT US The Boston Bar Journal Practice Tips Getting Uncle Sam To Talk: Obtaining Potentially Important Evidence from the FBI For Use in Civil Proceedings By Joseph L. Sulman

PART III Discovery CHAPTER 8 Overview of the Discovery Process Generally, discovery is conducted freely by the parties without court intervention. Disclosure can be obtained through depositions, interrogatories,

UPDATED OIG Guidelines for Evaluating State False Claims Acts Note: These guidelines are effective March 15, 2013, and replace the guidelines effective on August 21, 2006, found at 71 FR 48552. UPDATED

COUNTY OF ORANGE DEPARTMENT OF HEALTH Corporate Compliance Plan COUNTY OF ORANGE DEPARTMENT OF HEALTH CORPORATE COMPLIANCE PLAN I. Corporate Compliance Plan It is the policy of the Orange County Department

H. R. 4173 466 activities and evaluates the effectiveness of the Ombudsman during the preceding year. The Investor Advocate shall include the reports required under this section in the reports required

United States Attorney s Office for the District of Oregon Criminal Discovery Policy The discovery obligations of federal prosecutors are generally established by Federal Rules of Criminal Procedure 16

Part B PROCEDURAL SAFEGUARDS NOTICE New York State Education Department PROCEDURAL SAFEGUARDS NOTICE Rights for Parents of Children with Disabilities, Ages 3-21 As a parent, you are a vital member of the

FirstCarolinaCare Insurance Company Business Associate Agreement THIS BUSINESS ASSOCIATE AGREEMENT ("Agreement"), is made and entered into as of, 20 (the "Effective Date") between FirstCarolinaCare Insurance

Part 700 Tribal Occupational Safety and Health Administration (TOSHA) Section 701 Purpose and Definitions. (a) The purpose of Chapter 7 is to assure as far as possible safe and healthful working conditions

THE FCA INSPECTOR GENERAL: A COMMITMENT TO PUBLIC SERVICE FORWARD I am pleased to introduce the mission and authorities of the Office of Inspector General for the Farm Credit Administration. I hope this

HOUSE BILL 1067 By Jernigan AN ACT to amend Tennessee Code Annotated, Title 40, Chapter 17, relative to requiring reciprocal disclosure of witnesses prior to trial. BE IT ENACTED BY THE GENERAL ASSEMBLY

YOUR RIGHTS UNDER THE IDEA Part B Procedural Safeguards Notice 1 GENERAL INFORMATION PRIOR WRITTEN NOTICE 34 CFR 300.503 Notice Your school district must give you written notice (provide you certain information

Delaware UCCJEA 13 Del. Code 1901 et seq. 1901. Short title This chapter may be cited as the Uniform Child Custody Jurisdiction and Enforcement Act. 1902. Definitions As used in this chapter: (1) "Abandoned"

BUSINESS ASSOCIATE AGREEMENT FOR ATTORNEYS This Business Associate Agreement (this Agreement ), is made as of the day of, 20 (the Effective Date ), by and between ( Business Associate ) and ( Covered Entity

ONLINE INTEREST-BASED ADVERTISING ACCOUNTABILITY PROGRAM PROCEDURES Policy Oversight By: The National Advertising Review Council (NARC) Administered By: The Council of Better Business Bureaus, Inc. (CBBB)

Special Education Procedural Safeguards Rights for Parents and Children School District of For more information or questions regarding your child s special education services contact: Director of Special

CALIFORNIA FALSE CLAIMS ACT GOVERNMENT CODE SECTION 12650-12656 12650. (a) This article shall be known and may be cited as the False Claims Act. (b) For purposes of this article: (1) "Claim" includes any

Terms and Conditions Relating to Protected Health Information ( City PHI Terms ) Revised and Effective as of September 23, 2013 The City of Philadelphia is a Covered Entity as defined in the regulations